THE JURIDICAL CONTROVERSIES.
The great juridical controversies respecting _mare liberum_ and
_mare clausum_--the sea open to all, or that under the dominion of
a particular Power--which enlivened the international politics of
the seventeenth century, reached their highest pitch in the reign of
Charles I., and may be conveniently considered here. The writers who
touched upon the question in the previous century took it for granted
that the seas were capable of appropriation, and that they were almost
wholly under the dominion of one Power or another. It is true that
now and again a slender voice was raised in protest, on abstract
legal grounds, against the exclusive maritime sovereignty arrogated
by Venice, Portugal, or Spain. Queen Elizabeth too, as we have seen,
not only protested against these claims in certain cases, but actively
opposed them. Her action, however, pertained rather to the sphere of
diplomacy and politics than to legal controversy; and the protests of
the few jurists alluded to were too feeble to have practical effect on
the course of events or on the prevalent opinion.
It is noteworthy that the birth of modern international law was
associated with the origin of these juridical controversies as to
the freedom of the sea.[610] It was the appearance of _Mare Liberum_
in 1609 that heralded the dawn of the new epoch. The little book of
Grotius was at once a reasoned appeal for the freedom of the seas
in the general interest of mankind, and the source from which the
principles of the Law of Nations have come. The main reasons why
the controversy broke out at that time and the pleas of Grotius
had so much success are not difficult to discover. The period was
characterised by a great expansion of commercial enterprise. The
Western Powers of Europe, and above all the United Provinces, were
pushing into every sea for the sake of traffic and gain. In some
directions the trading adventurers found their way barred by claims to
_mare clausum_ and monopoly of trade; in other directions it was open
to them only under heavy burdens and aggravating restrictions. The
northern seas, in theory at least, were closed to the whaling vessels
engaged in what was then a most valuable business; and commerce and
fishing within them were permitted only under irksome conditions. The
passage through the Sound into the Baltic was subjected to high dues
by Denmark; Venice claimed dominion in the Adriatic and levied imposts
for the right of navigation there, and Genoa followed her example in
the Ligurian Sea. But it was not so much the claim of Denmark to the
sovereignty of the northern seas, or the rights asserted by Venice
in the Adriatic, that led to the outburst for the freedom of the sea
and of commercial intercourse at the beginning of the seventeenth
century. Except with regard to English traffic with Iceland and
Norway and the fishing there, more or less regulated by treaties, the
Scandinavian claim at this time was not of great practical importance;
and the dominion of Venice over the Adriatic was generally regarded
as beneficial on the whole, by interposing a powerful barrier to the
further extension of the Turkish empire in Europe, and by facilitating
the suppression of pirates and Saracens.[611] It was the extravagant
pretensions of Spain and Portugal to a monopoly of navigation and
commerce with the New World and the East Indies that constituted the
great obstacle to the new spirit of commercial enterprise. Founding
their title on the Bulls of the Pope, and the right of discovery,
conquest, and prior occupation, they arrogated to themselves the
exclusive sovereignty of the great oceans which were the pathways to
these immense regions,--the Atlantic, the Indian Ocean, and parts of
the Pacific. Thus, as Grotius remarked, the whole Ocean except a little
was to remain under the control of two nations, and all the other
nations of the earth were to content themselves with the remnant.
The commerce with the East Indies was of special value and importance.
The discovery of the Cape route by Vasco di Gama, in 1497, led to the
great stream of traffic between Europe and the East being diverted in
the next century from its old channel in the Mediterranean and Levant
to the Atlantic. The lucrative trade with the Indies was transferred
from the Venetians and the Italian Republics to the Portuguese, who
then became for a time the chief trading people of the world,[612] and
strove to keep it entirely in their own hands. It was particularly with
reference to this monopoly that the disputes about the freedom of the
sea began. The _Mare Liberum_ of Grotius was specially directed against
the prohibition by the Portuguese for any other nation to navigate
round the Cape of Good Hope or to trade with the Indies. It has been
well said by Calvo that the historical antecedents of the controversy
about _mare clausum_ are to be found in the voyages of Columbus and
Vasco di Gama.[613]
Very soon, however, the claims of other Powers to maritime
sovereignty--of Denmark, Venice, England--were similarly assailed, and
the controversy became general. It may be noted that those who took
part in it on the one side or the other, including some of the most
learned men of their age, were in large measure inspired by patriotic
motives. National interests as much as lofty ethics or legal principles
were at its root. Even Grotius, notwithstanding his impassioned
appeal to the conscience of the world for the liberty of the sea and
the freedom of commerce, was not exempt from this weakness. It was
his happy fortune that the cause he publicly advocated was equally
in conformity with the growing spirit of liberty and the immediate
interests of the United Provinces. Only four years later, when the
Dutch had obtained a footing in the East Indies in spite of the
Portuguese, they in turn wished to exclude the English from any share
in the trade with that opulent region: they did not want any freedom of
commerce that might tell against themselves. And then we find Grotius
arguing, in London, against his own declarations in _Mare Liberum_, and
in favour of commercial monopoly for his native land--a task, which,
we are told, he performed “with uncommon ability.”
This charge cannot be made against the two authors whose voices were
raised in opposition to the prevailing opinions as to the appropriation
of the sea before the work of Grotius appeared, and of whose writings
he made considerable use. One of these was a Spanish monk, Francis
Alphonso de Castro, who wrote about the middle of the sixteenth
century, protesting against the Genoese and Venetians prohibiting
other peoples from freely navigating the Ligurian and Adriatic Seas,
as being contrary to the imperial law, the primitive right of mankind,
and the law of nature; and also against the Spanish and Portuguese
claims for exclusive rights to the navigation to the East and West
Indies.[614] The other author, also a Spaniard, was Ferdinand Vasquez
or Vasquius, who expressed the same opinions as de Castro, and for
the same reasons. He held that the sea could not be appropriated, but
had remained common to mankind since the beginning of the world; that
the claim of the Portuguese to forbid to others the navigation to the
East Indies, and that of the Spaniards to a similar prohibition to
sail through “the spacious and immense sea” to the West Indies, were
no less vain and foolish (_non minus insanæ_) than the pretensions of
the Venetians and Genoese. The law of prescription, he said, was purely
civil, and could have no force in controversies between princes and
peoples who acknowledged no superior, because the peculiar civil laws
of any country were of no more value with respect to foreign nations
than as if they did not exist; to decide such controversies recourse
must be had to the law of nations, primitive or secondary, which it
was evident could never admit of such a usurpation of a title to the
sea. With regard to the right of fishery, Vasquius drew a distinction
between fishing in the sea and in rivers or lakes. He held that the sea
had been from the first, and still remained, by the primitive right
of mankind, free both for navigation and fishing, and that its use
could not be exhausted by fishing, while lakes and rivers may be so
exhausted.[615]
From the foregoing, it will be seen that Grotius had ready to his hand
many of the legal arguments of which he made so much use; but the
strength of his work lay rather in its appeal to the sense of justice
and the conscience of the free peoples of Christendom, to whom it was
dedicated. The Spanish authors, moreover, were not in a position to
assail the validity of the Papal Bulls, upon which the Spanish and
Portuguese claims were partly founded, whereas it was against them that
the Protestant writer levelled some of his most powerful philippics.
The _Mare Liberum_ of Grotius was published anonymously at Leyden,
Holland, in March 1609.[616] As the title declares, the author’s object
was to assert the right of the Dutch to trade with the Indies, and to
combat the pretensions of the Portuguese to a monopoly of navigation
and commerce in those regions; but the genesis of the book has only
been recently made known. At the end of the sixteenth century, when
the commerce of the United Provinces was expanding in all directions,
the Dutch merchants resolved to share in the lucrative trade with
the far east. Having failed to open up a passage to the Indies by the
north-east, they boldly sailed thither by the Cape of Good Hope, in
1595, through the seas and to the regions which Portugal claimed for
herself. Encouraged by success, other trading voyages by the same
route were undertaken almost every year. A United Dutch East India
Company was formed in 1602, and the States-General decided to maintain
their rights to the trade by force. The disputes and conflicts with
the Portuguese which followed were soon brought to a head by the
action of the redoubtable Jacob van Heemskerk in attacking and seizing
Portuguese ships.[617] The valuable booty taken from the Portuguese
was brought to Holland in 1604 and 1605, and caused much searching
of heart among the shareholders of the company. Many were gratified
by the spoil, but others of much influence, moved by conscientious
scruples or good policy, refused to share in it, and they threatened
to separate themselves from the company and form a rival association
to carry on peaceful trade under the protection of the King of France.
It was about this time that Grotius, incited by the condition of
affairs, began to write a treatise with the object of encouraging his
countrymen to resist the claims of the Portuguese by force. In a tract
written about 1614 to vindicate _Mare Liberum_ against the attack of
the Scotch lawyer, Welwood--which was not published, and the existence
of which was unknown till about forty years ago--he says that some
years earlier, perceiving the great importance of the East Indian
trade for the Netherlands, and that it could only be made secure by
armed resistance to the Portuguese, he had written a book in which he
explained the law of war and spoil; and in order to rouse the popular
mind he gave an account of the ill-treatment of the Dutch in the East
Indies at the hands of the Portuguese.[618] Grotius was then only a
little over twenty years of age, and it enhances our sense of the
precocity and fertility of his genius to learn that _Mare Liberum_ was
only one chapter (the twelfth) of this treatise. The treatise itself
was not published by Grotius; but in 1608, during the negotiations with
Spain which ended in the truce of Antwerp, on (March 30)/(April 9),
1609, the Spaniards demanded that the Dutch should relinquish the trade
with the West Indies and also with the East Indies (Portugal being then
united to Spain), and, probably at the request of the directors of the
East India Company, Grotius then detached the part of his work which
dealt with the freedom of commerce and navigation and published it in
March 1609, under the title of _Mare Liberum_.
In dealing with his theme Grotius attacked in succession all the
arguments put forward by the Portuguese to justify their claim. Their
titles from prior discovery of the Cape route, under Papal Bulls, by
the right of war or conquest, or from occupancy and prescription,
were all, he maintained, invalid; by the Law of Nations navigation
and commerce were free to all mankind. The action of the Portuguese
in attempting to restrain the trade with India furnished a just cause
of war; and the Dutch were resolved to assert their rights by force.
But _Mare Liberum_ was much more than a pleading in a particular case.
An earnest and powerful appeal was made to the civilised world for
complete freedom of the high seas for the innocent use and mutual
benefit of all. Grotius spoke in the name of humanity as against the
selfish interests of a few; and while he made full use of arguments
founded on Roman law, on the law of nature and of nations, it was
principally the lofty moral ideas which inspired his work that gave
it its reputation and charm. He entered into a subtle and learned
disquisition as to the origin of the idea of property from the
primitive times when all things were held in common; the conditions
under which private property is possible or lawful, and the distinction
between what is private, what is public, and what is common. Much of
the argument appears to us now to be of the nature of hair-splitting
and word-play; but inasmuch as it was made use of subsequently in the
numerous controversies regarding the freedom or the sovereignty of
the sea, as well as in diplomatic negotiations, it is necessary to
summarise it here. All property, he says, is based upon possession or
occupation (_occupatio_), which requires that all movable things shall
be seized and all immovable things enclosed; things that can neither be
seized nor enclosed cannot become property: they are common to all, and
their use pertains not to any particular people but to the whole human
race. The distinction is also made between things which are exhausted
by promiscuous use and those which are not: the latter are common, and
their free use belongs to all men. Thus the air is common, because it
cannot be occupied and because it cannot be exhausted by promiscuous
use; it therefore belongs to all mankind. And in the same way the sea
is common to all; it is clearly so infinite that it is not capable of
being possessed, and is fitted for the use of all both for navigation
and fishing.[619] It is also among those things which cannot be bought
and sold--that is, which cannot be lawfully acquired; whence it is,
strictly speaking, impossible to look upon any part of it as belonging
to the territory of a people. The sea is under no one’s dominion except
God’s; it cannot by its very nature be appropriated; it is common to
all, and its use, by the general consent of mankind, is common, and
what belongs to all cannot be appropriated by one; nor can prescription
or custom justify any claim of the kind, because no one has power to
grant a privilege adverse to mankind in general.
Grotius places navigation and fishing in the sea on the same footing,
or rather he looked upon interference with the freedom of fishing as
a greater offence than interference with navigation. With regard to
imposing tribute on fishermen, he said that such as are reckoned among
the Regalia are imposed not on the thing, that is the sea and the
fishing, but on the person; and while it may be levied by a prince on
his own subjects, it is not to be levied on foreigners, for the right
of fishing everywhere should be free to foreigners, lest a servitude be
imposed on the sea which it cannot bear. An action of this kind would
be worse than the prohibition of navigation; it would be barbarous and
inhuman. If any one, says Grotius, claimed jurisdiction and sovereignty
on the great seas for himself alone against promiscuous use, he would
be looked upon as one who was aiming at extravagant dominion; if any
one was to keep others from fishing, he would not escape the brand of
insane cupidity.[620]
It is hardly possible to escape the suspicion, which was apparently
shared by King James, as it was by many others, that Grotius in these
sentences was aiming obliquely at England. Such strength of language
about the right of free fishing in the sea was scarcely pertinent to
his theme, for neither the Portuguese nor the Spaniards contested that
right, and the Dutch did not fish in waters under their control. It
would, on the other hand, be explicable if Grotius had got a hint of
James’s intention with regard to the “assize-herring” (see p. 152), and
we know that as early as the beginning of 1606 proposals were made for
the formation of an English fishery society, with taxation of foreign
fishermen, and that in the beginning of 1608 negotiations were on foot
between the English Government and the Dutch Ambassador as to the
“assize-herring.”[621]
It is important to note--what many of his followers too often
forgot--that Grotius restricts the application of his general argument
for _mare liberum_ to the open sea. He does not, he says, deal with
an inland sea (_mare interiore_) which, surrounded on all sides by
land, did not exceed the breadth of a river; the question concerned
the ocean, which the ancients called immense, infinite, the parent
of things, co-terminous with the air. The controversy, he continues,
was not about a bay or a strait in this ocean, _nor concerning so
much of it as might be seen from the shore_: the Portuguese claim for
themselves whatever lies between the two worlds.[622] Again, referring
to the Italian publicists, he says their opinion cannot be applied to
the matter in question, for they speak of the Mediterranean, he of the
ocean; they of bays or gulfs, he of the vast sea, which differ very
much in respect of occupation.[623]
The opinions and reasonings of Grotius in _Mare Liberum_ as to the
free use of the sea were repeated more concisely and with some
modification in his greatest work, _The Rights of War and Peace_, which
was published in 1625.[624] No one, he affirmed, can have property in
the sea, either as to the whole or its principal parts; and as some
people admit this in respect to private persons but not in regard to
countries or states, he proceeds to prove its truth by both a “moral
reason and a natural reason.” The moral reason is the vast extent and
inexhaustibility of the sea, whether for navigation or fishing; the
natural reason is that it cannot be occupied or possessed because
of its fluidity, since liquids having no bounds of their own cannot
be possessed unless enclosed by something else, as a river by its
banks; but the sea is not contained in the earth, as it is equal to
it or even greater.[625] Grotius, however, admits that his argument
that rivers and lakes may be appropriated because their banks could
be appropriated, may be logically applied also to certain parts of
the sea. From the example of rivers he says, “It appears that the
sea may be occupied by him who is in possession of the lands on both
sides, although it be open either above, as a bay or gulf, or both
above and below, as a strait, provided that it be not so great a part
of the sea that when compared with the lands on each side it cannot
be supposed to be some part of them”; and what is lawful to one king
or people may be also lawful to two or three, if they have a mind to
take possession of the sea thus enclosed within their land.[626] He
also admits by another train of reasoning--concerning property in the
marine vivaria of the Romans--that if it is not repugnant to the law
of nature for a private person to appropriate a small enclosed part
of the sea, one or more nations possessing the shores might in like
manner appropriate a part of the sea, if it be small compared with the
land; and that might happen although the sea was not enclosed on all
sides. But this admission that the law of nature does not preclude
appropriation of a relatively small part of the sea by the neighbouring
state, he qualifies in a general way by saying that there are many
things tolerated by the law of nature which the law of nations, by
common consent, might prohibit; and where this law of nations was in
force and is not repealed by common consent, the most inconsiderable
part of the sea, although almost enclosed by the shores, can never be
the property of a particular people. And in places where the law of
nations was not received, or was afterwards abolished, it does not
follow that the people merely because they possess the lands also
possess the sea enclosed by them; the taking possession must be made
by an overt act, and signified and made known. And if the possession
thus gained by the right of prior occupation is afterwards abandoned,
the sea returns to its original nature--namely, to the common use of
mankind. Further, he who possesses any part of the sea cannot lawfully
hinder unarmed ships, giving no room to apprehend danger, from sailing
there, in the same way that he cannot justly prohibit innocent passage
through his lands. Grotius goes on to explain that it is more easy to
take possession of the jurisdiction (_imperium_) alone over part of
the sea than of the right of property, and that it is not contradicted
by the law of nations; and he points to a number of instances among
the ancients.[627] He admits that sovereignty or jurisdiction may
be acquired on the sea either in regard to persons or in regard to
territory (_ratione personarum et ratione territorii_),--in regard
to persons, as when a fleet, which is a maritime army, is maintained
in any part of the sea; in regard to territory, as when those who
sail along the coasts may be compelled from the land, as if they were
actually on the land.[628]
The latter statement of Grotius contains the germ of the idea
subsequently adopted by almost all the writers on international law,
that the extent of the adjoining sea over which the neighbouring state
is entitled to exercise dominion is limited by the range of guns from
the land. Grotius does not mention the means by which compulsion was to
be made effective, but there is little or no doubt of what was in his
mind.[629] It remained for Bynkershoek, at the beginning of the next
century, to give the doctrine precise expression.
It is obvious from the foregoing that the opinions expressed by
Grotius as to the appropriation of the sea were not always consistent,
and were sometimes self-destructive. If the fluidity and physical
nature of the sea made it impossible to occupy or appropriate it, the
objection applied as much to one part of it as to another, since it is
everywhere fluid; and the admissions in his later book stultify many
of the statements in the earlier one. It seems to be indisputable that
Grotius was to some extent influenced by his environment, and expanded
or contracted his argument to meet the conditions at the time--that he
was, in short, like all the others, more or less of an advocate. When
he published his greater work he was in the service of the Queen of
Sweden, who claimed a somewhat extensive maritime sovereignty in the
Baltic, and it is not unlikely that this influenced him in making the
admissions referred to.
The immediate object for which _Mare Liberum_ was published--the
recognition of the right of the Dutch to sail to the East Indies and
to trade there--was achieved by the treaty of Antwerp in the month
following its appearance,[630] and no reply from the Portuguese or
Spaniards to the arguments of Grotius was published till sixteen years
later. Grotius tells us that a work in refutation of _Mare Liberum_
had been prepared by a scholar of Salamanca, but it was suppressed
by Philip III.;[631] but in 1625, when Philip IV. was on the throne,
an elaborate defence of the rights of Portugal in the Indies and a
reply to Grotius was published by Franciscus Seraphinus de Freiras,
a Spaniard, who dedicated his book to the king.[632] The Venetians
also, whose power had by this time declined, began to defend with the
pen their rights in the Adriatic. These rights had been indirectly
assailed by the general argument of _Mare Liberum_, and directly in
the writings of de Castro and Vasquius, from which Grotius had quoted
liberally; and now at the beginning of the seventeenth century they
were actively contested by other Powers, and in particular by Spain.
Hence quite a number of works defending the claims of Venice appeared
at this period, the best of which was that of Pacius, who relied on
the opinions of numerous early jurists, as Bartolus, Baldus, and
Angelus; on immemorial possession and prescription, and stated that the
rights of the Venetians consisted in jurisdiction, the imposition of
taxes, the prohibition or regulation of navigation, the protection of
subjects, and the suppression of pirates.[633]
But it is probable that _Mare Liberum_ received as much attention
in England as it did in any other country. Grotius, as we have
seen, condemned any interference with the liberty of fishing or the
imposition of taxes on foreign fishermen in very severe language, and
his book appeared just at the time when King James had resolved on
both these courses, and within less than two months of the issue of
the famous proclamation forbidding unlicensed fishing by foreigners on
the British coasts. To be by implication branded as “insanely cupid”
by an anonymous Dutch writer, because he had decided to levy the
“assize-herring” from Dutch fishermen, must have irritated James; and
the irritation would not be lessened when he found the envoys from the
Netherlands in the following year vindicating their right to liberty
of fishing by just such arguments as were contained in _Mare Liberum_.
James, indeed, showed a somewhat bitter feeling towards the great
Dutch publicist when the authorship was revealed and the author lay in
prison; and Carleton, the English ambassador at The Hague, in a speech
to the States-General, held him up to opprobrium and stated that the
disgrace into which he had fallen should deter others from adopting his
opinions.
The task of replying to Grotius was taken up by a Scottish lawyer,
William Welwod or Welwood, a professor of the civil law. Welwood was
Professor of Mathematics at St Andrews University, but exchanged the
Mathematical for the Juridical Chair about the year 1587; at the royal
visitation in 1597 he was deprived of his office, on the ground that
the profession of the law was in no wise necessary at that time in
the University, but probably because his profession as a teacher of
jurisprudence was obnoxious in the eyes of James.[634] In 1590 he had
published at Edinburgh a treatise on the Sea Laws of Scotland, which
is believed to be the earliest regular work on maritime jurisprudence
printed in Britain, and which was dedicated to James;[635] but
it contains nothing bearing on the question of the fishery or
“assize-herring.” In 1613 he published at London a new and enlarged
edition of his early work, and in one of the chapters on “The Community
and Proprietie of the Seas,” he endeavoured to refute the arguments
advanced in _Mare Liberum_, which he seems to have looked upon as
a reply to James’s proclamation of 1609.[636] This work was also
dedicated to the king, and in a prefatory address to the three High
Admirals--the Duke of Lennox, the Earl of Northampton, and the Earl of
Nottingham--he impressed upon them the importance of the “conservacie”
of the sea, especially for the fisheries, and urged that strangers
should be stayed from scattering and breaking the shoals of fish on the
coast of Scotland, a duty on which some of his Majesty’s ships might
well be employed.
Welwood was scarcely fitted either by knowledge or capacity to be
a formidable antagonist to a giant like Grotius; and although his
writings contain quite a number of arguments which were later used
and expanded by Selden, it can hardly be said that they had a great
influence on the controversy. He looked upon _Mare Liberum_ as an
attack on the rights of King James and his subjects to the fisheries
“on this side the seas,” veiled under the pretext of asserting the
liberty to sail to the Indies. As befitted his nationality and his
time, many of his arguments were drawn from Holy Writ, and he had no
difficulty in placing Providence on the side of James and in opposition
to the Dutch. Others were more pertinent. He urged that the injunctions
of the Roman law applied only to the subjects of Rome, and not
internationally as between state and state,--an opinion also pressed,
as we have seen, by Vasquius; that the fluidity of the sea was no bar
to its occupation, and that it could be, and had been in certain cases,
divided up into marches and boundaries, by the ordinary methods used
by navigators, “so farre as is expedient for the certain reach and
bounds of seas, properlie pertaining to any prince or people,”--what
these bounds are or should be he does not say, though he quotes the
Italian limit of 100 miles with approval. He held that the liberty of
navigation was beyond all controversy, and agreed to the principle
of the complete freedom of the sea so far as concerned the “main
Sea or great Ocean,” which was “farre removed from the just and due
bounds above mentioned properlie perteyning to the neerest Lands of
euerie Nation.” To Grotius’ statement that it was worse to prohibit
promiscuous fishing than to forbid navigation, Welwood justly replied
that if the free use of the sea is interfered with for any purpose, it
ought to be chiefly for the sake of the fishings, if the fishes become
exhausted and scarce, as he says was the condition at that time on the
east coast of Scotland, from the “neere and dailie approaching of the
busse fishers” scattering and breaking the shoals, so that no fish
“worthy of anie paines and travels” could now be found.
Two years later Welwood returned to the theme, and published a formal
little book on the dominion of the seas.[637] It was dedicated to
Queen Anne, who had just been endeavouring to set up a fishery society
with power to tax foreign fishermen (p. 161), and, as explained in
the dedication, the book was specially directed against the freedom
unlawfully usurped by foreigners of fishing in the British seas. It may
be regarded as an amplification of his chapter in the _Abridgement_,
but is much superior and more logically arranged; and being written
in Latin, it attained, if not a reputation, at least considerable
recognition on the Continent. He urges strongly that the sea as well
as the land is capable of distinction and dominion, both by human and
by divine law, and explains the contrary opinion of many publicists,
poets, and orators (so copiously quoted by Grotius) by saying they
were ignorant of the true law of nature, and had infected the minds of
later generations with “a preposterous notion concerning some universal
community of things.” The adjacent sea is claimed for the neighbouring
state, because it is as necessary there as it is on land that some one
should have jurisdiction, and this jurisdiction ought to be exercised
by the neighbouring prince, so that both the land and the sea should
be under the same sovereignty. The part of the sea next the land is,
moreover, so joined to and, as it were, incorporated with it, that the
ruler of the land is not permitted to alienate either a part of it, or
the use of it, or to let it out (_locare_) any more than his kingdom or
the patrimony of his kingdom. He held that it was incontestable that
the vast and boundless waters beyond the _mare proximum_ were open
to all nations indifferently for all uses, but that in the adjacent
sea the neighbouring prince had in particular two primary rights
besides jurisdiction--namely, the right of navigation and the right
of fishing, with the power to impose taxes for either. He maintained
that fishing in the sea was for the most part appropriated, and for a
clear reason. God had appointed the fishes (herrings) to swarm along
the coasts of Britain and the surrounding isles at seasons and places
which He had pre-arranged, and for the benefit of the inhabitants: why,
then, should the people be hindered from possessing as their own this
benefit which God had granted them? He would be unwilling to deny the
communication of this natural advantage to other nations, “but only by
the same law by which they possess their own, that is by a just price.”
Yet, notwithstanding this special blessing which had been granted
to the British people, they were despoiled of it and of their just
rights, owing to their seas being taken possession of, as it were, by
a continual inundation of foreign fishermen, so that the shoals were
scattered and the fishery exhausted. Welwood then refers to the alleged
old agreement between the Scotch and the Dutch, whereby the latter were
not to fish within eighty miles of the coast of Scotland (p. 84), but
which they of late totally disregarded, fishing close to the shore,
in front of the houses. And while they were permitted to carry away
their fish from our seas without paying any tribute, the poor Scottish
fishermen had to pay tithes to the Church and the assize-herring to the
crown, as well as having their livelihood damaged by the action of the
foreigners.
The treatises of Welwood were composed to support the claim of James
to the assize-herring, and the project of the queen to monopolise the
fishings, as much as to demonstrate the law as to the dominion of the
sea. On one account if on no other his works deserve to be remembered.
He was the first author who clearly enunciated, and insisted on, the
principle that the inhabitants of a country had a primary and exclusive
right to the fisheries along their coasts--that the usufruct of the
adjacent sea belonged to them; and that one of the main reasons why
that portion of the sea should pertain to the neighbouring state was
the risk of the exhaustion of its fisheries from promiscuous use.
But they will be remembered in the history of international law for
another reason. The first of them called forth from Grotius the only
reply he ever vouchsafed to the numerous writers who attacked _Mare
Liberum_. In the year in which the work was published, he was in London
as one of the Dutch ambassadors, engaged in the somewhat ironical
task of defending a Dutch _mare clausum_ in the East Indies, and
probably the book then fell into his hands. In his _Defensio_ (see
p. 344) Grotius reaffirmed the position he took in _Mare Liberum_,
with the old arguments, and with some new ones to meet the criticism
of Welwood, and not without some of the customary logic-chopping and
wire-drawn reasoning. He held that the Roman law as to the sea being
common applied not merely among the citizens of one state, but among
mankind in general, because _communis_ was a different thing from
_publicus_.[638] While admitting the possibility of marking out the
sea by imaginary lines, he said this was not relevant to the question
of appropriation, since appropriation could not take place without
possession, and possession cannot be established merely by the mind
or intellect, but requires a corporeal act; otherwise the astronomer
might lay claim to the heavens or the geometrician to the earth.
Concerning the rights of fishery, with which the _Defensio_ largely
deals, he asserts that as the use of the sea is common to all, no one
can prohibit fishing in it or justly impose taxes on it. With respect
to the right of the Dutch to fish on the British coasts, he cites the
Burgundy treaties and uses the same arguments as the Dutch ambassadors
did in 1610 (p. 155). They had the right by treaties, immemorial usage,
prescription, and the Law of Nations. It is noteworthy that in the
_Defensio_, Grotius, no doubt owing to the polemical spirit inciting
him above all to refute the arguments of Welwood concerning the _mare
proximum_, as well as to demolish the claims of King James, denies the
existence of sovereignty or property in any part of the sea, whereas
it appears to be allowed by implication in _Mare Liberum_, and is
expressly admitted in his later and larger work. Here he says, and
more logically, that whatever applies to the whole sea applies to
all its parts, even to a diverticulum, and he allows no exception for
the sea washing a coast: a conclusion, however, at variance with the
general practice of the time. This tract, as already stated, was not
published by the author, probably because it was likely to excite still
more the ire of James at finding his “rights” again “questioned.”[639]
In contrast with the writings of Welwood may be cited the opinions of
another and more eminent Scottish lawyer, Sir Thomas Craig, who touched
upon the subject of maritime jurisdiction in a non-controversial work
published before the juridical controversy had arisen.[640] He states
that the sea is common to all for navigation, but that property and
jurisdiction in the adjacent sea pertains to the neighbouring territory
according to the current opinion--the sea washing the coast of France,
England, Scotland, Ireland, &c., to the respective countries. No limits
or bounds are laid down by Craig as to the partitioning of the sea in
this way, but when dealing with the theoretical question of islands
arising in the sea, he follows Bartolus in assigning a space of 100
miles from the coast. He admits that certain seas may be prescribed, as
the Adriatic, which Venice, though not possessing the shores, claimed
by prescription. With respect to fisheries, the Scottish author, as
might have been expected, holds that those in the adjoining sea belong
to the bordering state: they are prescribed, and fishing there may be
permitted or prohibited according to custom; and he says that it was
not without great injury to us that the Dutch carry on their fishery
around our islands.[641]
In the period that elapsed between the appearance of the works of
Grotius and Welwood and the publication of Selden’s _Mare Clausum_,
a number of other books were issued which dealt with the question
of the freedom of the seas and the extent to which they might be
appropriated. Gerard Malynes, in treatises on commerce which had a wide
circulation, re-echoed the opinions of Welwood, and of Gentleman and
Keymer. The “main great seas,” he said, were common to all nations for
navigation and fishing, but the bordering sea was under the dominion
of the prince of the adjoining country, and foreigners could only fish
in it by obtaining permission and paying for the privilege; within
this sea navigation was free unless it interfered with the fishings.
Malynes said that this was the practice in Russia, Denmark, Sweden, and
Italy; and he ascribed the decay of English fisheries and trade to the
admission of foreigners to fish in “his Majesty’s streames” without
paying for the liberty.[642] Two other authors, each celebrated in
his respective sphere, touched upon the king’s dominion in the seas,
and they may be regarded as representing two different aspects of the
subject, both of which became of great importance--namely, the limits
of neutral waters, and the rights of the crown by the Common Law of
England to the propriety of the sea and its bed. One was Alberico
Gentilis and the other Serjeant Callis.
Gentili, or Gentilis, who was a forerunner of Grotius in shaping
the Law of Nations,[643] was an Italian of the school of Perugia,
domiciled in England, where he held the Regius Professorship of Civil
Law at Oxford. In 1605, after the conclusion of peace with Spain,
he was appointed advocate for the Spanish embassy in London, and
was frequently employed in the Admiralty Court in cases where the
legality of the capture of Spanish vessels by the Dutch had to be
determined. His pleadings and the decisions in these and similar cases
were collected and published in 1613, after his death, and they form,
according to Wheaton, the earliest reports of judicial decisions on
maritime law published in Europe.[644]
In discharging his duties in the English Prize Courts, it often fell
to the lot of Gentilis to deal with the jurisdiction of England in
the seas, for while he held office war existed between Spain and the
United Provinces, and Spanish ships were frequently taken by the
Dutch in the neighbourhood of the British coasts. Of course, captures
made in the King’s Chambers after the proclamation of 1604 (see p.
119) were not good prize, and were restored.[645] But when a Spanish
vessel was seized clearly outside the limits of the King’s Chambers,
Gentilis argued that it was not good prize, because, first, the treaty
of peace[646] between Spain and England provided that the subjects of
either were to be protected in all places throughout the dominions of
the other; and, second, the dominion of the King of England extended
far into the neighbouring seas. He seemed to stretch the joint
sovereignty of Spain and England as far as America, pointing out that
the southern coasts of Ireland were opposite to Spain, and the western
coasts were bounded by the Indies belonging to Spain, while the
northern coasts of Britain, having no countries lying against them,
were washed by an immense and open sea. He held that the proclamation
of 1604, fixing the limits of the chambers in connection with acts of
hostilities between the Spaniards and the Hollanders, ought not to
prevail against the provisions of the treaty, for the proclamation
was subsequent to the treaty, and it would be unjust to allow it
to lessen the extent of the territory (sea) over which protection
was to be afforded by the terms of the contract. It was not a valid
argument, Gentilis continued, to say that the boundaries expressed in
the proclamation--that is, the King’s Chambers--had been observed long
before by common usage in relation to similar cases.[647]
There is no doubt, however, that although Gentilis as an advocate took
this line of pleading, the boundaries of the King’s Chambers from
headland to headland, as defined by James in his “plat,” were received
as settled law in regard to neutrality both in the English courts and
on the Continent.[648] Gentilis further urged that the limit fixed by
the Italian jurists for the extent of jurisdiction--viz., 100 miles
from the coast, unless the proximity of another state interfered with
its application--also was in force off the British coasts, a view which
the court declined to accept.
Yet, although this principle of extending and limiting the territorial
jurisdiction to 100 miles was not accepted in the English Courts, we
find it made use of in the diplomatic correspondence of the time. The
Earl of Salisbury in a letter to Cornwallis, the English ambassador
at Madrid, explanatory of James’s proclamation in 1609 forbidding
unlicensed fishing, did not seek to defend the action of the king by
reason of any intrinsic right of the crown of England to sovereignty
in the neighbouring sea, but rather upon what he alleged was the
practice of the civil law. A sovereign prince or state, he said, was
_Mundi Dominus, Lex Maris_, both because of the protection afforded to
navigation in the adjacent sea and from prescription: the adjoining
sea, as Baldus said, pertained to the territory of the neighbouring
state, and thus the Venetians, as lords of the Adriatic, could impose
taxes and penalties on navigation. “In respect of both which titles,”
continued the Earl, “the Kings and Princes in general fronting upon the
seas, as Spayne, France, Denmark, &c., have upon occasion offered, not
only made ordinances and published edicts for the ruling and better
ordering of the seas, but also have put them in execution; as well
civilly for deciding of contracts, as criminally for transgressions;
and have raised taxes and gabells in the seas as on the land to their
best benefit, as part of their regalities properly belonging unto
them, in sign of their sovereignty.” As to the distance to which this
sovereignty extended, he said it was “generally received to be about
one hundred miles at the least into the seas,” unless in narrow seas
only, in which case the limits are divided by the channel, “except the
princes of the one shore have prescribed the whole, as it falleth out
in his Majesty’s narrow seas between England and France, where the
whole appertayneth to him in right, and so hath been possessed tyme out
of mind by his progenitors.”
By another channel we may trace the course of the ideas which
converged and culminated in the claims of Charles to the dominion of
the surrounding seas--viz., in connection with the development of
the law relating to the rights of property in the foreshore and the
bed of the sea. Cases frequently occurred in which those rights were
contested between private individuals and the crown; and in the course
of litigation, or in writings dealing with the subject, the rights in
the sea which were alleged to belong to the crown were explained. We
have already seen that Plowden, in a case of the kind, argued that
Queen Elizabeth possessed jurisdiction as far as the middle line in
the surrounding seas,--a doctrine which the queen expressly repudiated
in 1602,--but denied to her any right of property in either the sea or
its bed. The claims of the crown to the ownership of the foreshores
originated in the reign of Elizabeth; under James and Charles I. they
were systematically pursued by the “title-hunters”; and while the legal
decisions in contested cases were for a long time adverse to the crown,
they began in the reign of James to be in its favour, and gradually
the idea was imported into and became a part of English law that the
ownership of the foreshore was _prima facie_ vested in the crown in
virtue of the royal prerogative.[649]
Along with the development of this idea came another, which was
ultimately likewise engrafted on English law--that the crown had the
exclusive right of property in the sea and in the soil beneath it.
The origin of the idea is to be found in a treatise written in 1569
by Thomas Digges.[650] He argued that as many things--as wrecks,
treasure-trove, waifs and strays, which were originally common by the
law of nature--now belonged to the Prince, so also should the sea,
which was the chief of all waters, and could not by the civil law
become the property of a subject. He held that just as the owners of
the soil had the property in a river and its banks, the king had the
interest and property in the “great salt river” environing the island,
and in its shores and bottom; and he speaks of the sea as the “King’s
river,” the “King’s streme,” and the “King’s water,” in which he had
also jurisdiction. Digges also claimed that the fishings in the sea
belonged to the crown, for “although the Kings of England have benne
content to suffer fishermen _Jure gentium_ to enjoy to theire owen use
such fishe as by theire charges travill and adventure they can in the
Englishe Seas take, Yet haue the Kings of England for remembrance of
this theire favoure that the memorie of theire propertie in the Seas
shoulde not be extinguished, alwaie reserved to them selves the cheif
fishe as Sturgeon, Whale, &c.”[651]
The contention that the crown had the right of property in the sea
and its bed, denied by Plowden, received in the reign of James much
fuller amplification at the hands of Serjeant Callis, whose well-known
lectures on the Statute of Sewers were delivered in 1622.[652] Callis
argued that in “our _Mare Anglicanum_” the king had, by the common
law of England, four “powers and properties”: sovereignty (_imperium
regale_), legal jurisdiction for the administration of justice,
property in the soil under the sea and in the water, and possession
and profits both real and personal. He cites in proof a number of
authorities, legal and historical, such as were cited later by Selden.
The statement in a case decided in the reign of Richard II. (1377-99),
that “the sea is within the legiance of the king as of his crown of
England”; the charter of the Admiral giving him power in maritime cases
throughout the realm of England; the phrases in certain statutes; the
right to wreck and royal fishes, and so forth, “proved the King full
Lord and owner of the seas, and that the seas be within the realm of
England.” The king rules on the sea, he held, “by the laws imperial”
as by the Roole d’Oleron and others, but only in the case of shipping
and for merchants and mariners; his rights of property in the bed and
waters of the sea, and the personal profits (wreck, flotsam, &c.)
accruing, were his by the common law. Callis did not deal with fishing,
nor attempt to define the bounds of “the seas of England” in which the
king had property and jurisdiction.
The interpretation of the law as to the rights of the crown in the
seas, as propounded by Callis, was followed by Selden and Hale, and
generally by the lawyers who came after him. Lord Chief-Justice Coke,
in his _First Institute_, which was published in 1628, explains the old
phrase “within the four seas” (_infra quatuor maria_) as meaning within
the kingdom and dominions of England; for if a man be upon the sea
of England he is “within the kingdom or realm of England, and within
the ligeance of the king of England, as of his crown of England.” In
his _Fourth Institute_, which was not published, however, till 1644,
ten years after his death, when treating of the Admiralty Court, Coke
entered more fully into the question of the rights of the crown in the
seas of England; and, as already mentioned, he looked upon the roll
of Edward I., _De Superioritate Maris_, as proving that the king’s
right of dominion over the sea had been expressly acknowledged by
neighbouring nations.
But none of the works on the rights of England in the adjoining
seas, which had appeared when the new policy of Charles began to be
fashioned, was sufficiently profound or authoritative to furnish
reasonable justification for that policy in the eyes of the world. The
king in 1632, as we have seen, desired to demonstrate his rights by
means of “some public writing,” founded upon the historical records
of the realm,--a demonstration which was to precede the revival of
the English pretension to the dominion of the seas in what Secretary
Coke called its ancient style and lustre. As a result of the search
made amongst the records in the Tower and elsewhere for evidence and
precedents to establish the claim, several treatises and collections
were compiled. Most of these were of little account,[653] but one of
them attained an authority and celebrity only second to the great work
of Selden. Before Charles wrote to the Clerk-Register in Edinburgh
for Scottish documents to substantiate his claims (p. 212), it seems
that Sir John Boroughs, the Keeper of his Majesty’s Records in the
Tower, had been commissioned by the king to prepare the “public
writing” to which he referred. We have already seen that in 1631
Boroughs brought forward the important roll of Edward I.; he tells us
in his preface that his work was composed at the request of “a great
person”; it was written in Latin, the language which fitted it for
foreign Courts; and it deals very largely with the Dutch and English
fisheries, even recommending the construction of 250 busses for the
fishery association. Boroughs’ treatise, entitled “The Soveraignty of
the British Seas, proved by Records, History and the Municipall Lawes
of this Kingdome,” was completed in 1633, but it was not published
until 1651, when the question of maritime rights had been again raised
between England and the United Provinces.[654] It is probable that
the king discarded it for _Mare Clausum_, the incomparably superior
treatise by Selden, of the existence of which he was probably made
aware as early at least as 1634.
Nevertheless, Boroughs’ work was the first successful attempt to bring
together a great array of historical facts in favour of the English
claims to the dominion of the seas. Like Selden, he begins with the
Roman occupation of Britain in order to show that from the first the
“British nation had the supreme power of command of their own seas”;
and, moreover, he gives all the more important documents to be found
in _Mare Clausum_,--the ordinance of John, the rolls of Edward I. and
Edward III., the charter of Edgar, the Laws of Oleron, commissions to
the admirals, safe-conducts, and extracts from the Burgundy treaties.
He is very emphatic as to the king’s right to the dominion of the seas
and the fisheries. “That princes,” he says, “may have an exclusive
property in the soveraigntie of the severall parts of the sea, and in
the navigation, fishing and shores thereof, is so evidently true by
way of fact, as no man that is not desperately impudent can deny it”;
and--no doubt for the benefit of the Dutch--he adds that “if any nation
usurp our rights, the king has a good sword to defend them.” He asserts
that the kings of England in succession had the “sovereign guard” of
the seas; had imposed taxes and tributes upon all ships navigating or
fishing in them; and had closed and opened the passage through them
to strangers, as they saw cause. The sovereignty of the sea he calls
“the most precious jewel of his Majesty’s crown, next (after God) the
principal means of our wealth and safety.” A considerable part of the
treatise is taken up with the fisheries, the information being almost
wholly derived from previous writers; the usual comparisons are drawn
of the flourishing state of the fisheries of Holland and the poor
condition of those of England, and the usual statements made as to
the benefits that would accrue to the kingdom if the fisheries were
developed.
Boroughs’ treatise, however interesting from the historical documents
it contained, had serious defects when considered as a formal
justification to Europe of the policy of Charles. The facts were not
skilfully marshalled; the deductions were bald and crude; and above
all, it was destitute of arguments and reasoning founded on law.
Grotius was then the Swedish ambassador at Paris, his works were well
known and esteemed throughout Europe, and it would have been indiscreet
to attempt to answer his elaborate arguments against such claims to
_mare clausum_ by saying that these claims were self-evident and that
only an impudent person would deny them.
Fortunately for Charles, Selden now came upon the scene to vindicate
and glorify his prerogative in the surrounding seas. The distinguished
author tells us that his great work, _Mare Clausum_, was begun long
before at the desire of King James, and had been lying in an incomplete
and imperfect form for fully sixteen years.[655] It was presented to
James in 1618, but several reasons prevented its publication, one
of the chief being that the king was afraid that some passages it
contained might give offence to the King of Denmark, from whom he was
then endeavouring to obtain a loan of money.[656] At the request of
Charles, Selden now recast his treatise, added to it, and completed it.
It was dedicated to the king and published by his “express commands,”
as he explained a little later, “for the manifesting of the right and
Dominion of Us and our Royal Progenitors in the seas which encompass
these our Realms and Dominions of Great Britain and Ireland.”[657]
Selden, as is well known, had taken a prominent part in the Parliament
of 1629, in the majority which resisted the king’s wishes, and was
for a time imprisoned in consequence of his share in the historic
disturbances with which it had ended, when the Speaker was held
down in the chair. He was released on bail under sureties for good
behaviour, and he was bound to present himself, on the motion of the
Attorney-General, in the Court of King’s Bench, on the first day of
each term, as a person under surveillance.[658] Selden was not of the
stuff of which martyrs are made. After his release, we find him among
the lawyers of the Inns of Court arranging for the masque which was
performed before the Court, at Whitehall in February 1634, as a token
of the detestation in which they held Prynne’s innuendo concerning the
queen in his _Histriomastix_.[659] Towards the end of the same year, in
a humble petition to the king (“prostrating myself at the feet of your
sacred Majesty”), he begged that the royal displeasure might be removed
and the bail discharged, assuring Charles of his readiness to serve him
with gladness and affection. In February 1635 the king forwarded to
the Judges of the Court of King’s Bench a mandate, the draft of which
had been prepared by Selden himself, instructing them to discharge him
of their recognisances;[660] in August we find the Dutch ambassador
writing to The Hague that the book was being printed;[661] and in
December of that year it was given to the world.[662] There is little
doubt that Selden’s petition to the king and its favourable reception
covered the negotiations concerning the completion and publication of
_Mare Clausum_, which were carried on under the auspices of certain
eminent personages at Court, and probably of Laud.[663] He tells us
that the early work was very imperfect, and required to be completely
reconstructed, and that he was able to devote some months of leisure to
the task. But even Selden’s extraordinary erudition and great industry
could not have produced such a book without prolonged labour; and it
may be guessed that, observing the trend of the king’s policy and
becoming desirous of royal favour, he began to reconstruct his treatise
very soon after leaving prison.
The political significance of Selden’s work was instantly recognised
both at home and abroad. It appeared at the time when the pretensions
of Charles to the dominion of the sea were astonishing Europe. While
the printers were still busy with it, the Earl of Lindsey’s fleet was
scouring the Channel to force the elusive squadrons of France to strike
to the king’s flag. The longing to compel homage to the flag burned
like a fever in the breasts of naval officers; and despatches poured in
from them announcing that Dutch, Danish, and even occasionally French,
ships had been forced to strike, sometimes in their own waters. The
supposed policy of the Plantagenets had been expounded in high-sounding
despatches to foreign Courts, and formulated in Admiralty instructions.
The Dutch fisheries had been threatened; and it was known everywhere
that the King of England was preparing a formidable fleet to sweep the
seas in the following year.
Charles did what he could to emphasise the importance of the book.
When a pirated edition appeared within a few months at Amsterdam,
bearing the name of the king’s printers and the word London in
imitation of the original edition, and with a print of the great
Burgundy treaty, the Intercursus Magnus, and a tract appended by way
of antidote, he complained to the Dutch ambassador, and issued a
proclamation declaring that _Mare Clausum_ had been published by his
express commands, denouncing those who had produced the pirated copy,
and banning it from the realm.[664] On 26th March, as the following
record shows, he brought it before the Privy Council with high eulogy,
and for a definite purpose: “His Majesty this day in Council took
into consideration a book lately published by John Selden, Esquire,
intituled _Mare Clausum, seu de Dominio Maris_, written by the king’s
command, which he had done with great industry, learning and judgment,
and hath asserted the right of the Crown of England to the Dominion of
the British seas. The King requires one of the said books to be kept in
the Council-Chest, another in the Court of Exchequer, and a third in
the Court of Admiralty, as faithful and strong evidence of the Dominion
of the British seas.”[665]
There was good reason for the king’s eulogy of Selden’s treatise. From
the point of view of his policy nothing that the pen can do could have
been better done. It is an elaborate and masterly exposition of the
case for the sovereignty of the crown of England in the British seas,
which throws into the shade all the other numerous works which were
written on that side of the question. One of the most eminent lawyers
of his time, a scholar, an antiquary, an historian, the author brought
to his task a keen intellect, an immense erudition, and the ability
of disposing his material and arguments to the best advantage. In
learning at least he far surpassed Grotius, and he was not inferior to
his illustrious contemporary in ingenuity of reasoning. It was Selden’s
misfortune that the cause he championed was moribund, and opposed
to the growing spirit of freedom throughout the world. At the same
time it must be said that, apart from its extreme doctrines as to the
sovereignty of England in the seas, it more correctly represented what
are now the admitted principles as to the appropriation of the adjacent
sea than did most of the works written on the other side, not excepting
even those of Grotius.
But in relation to the cause for which it was written, the merit of
_Mare Clausum_ lay not merely in the enunciation of the theoretical and
legal aspects of the claim to maritime sovereignty, but also in the
imposing array of historical facts and arguments by which the right
of England was sought to be established. The defects of the work are
scarcely less apparent. There is no ground to suppose that Selden was
guilty of the offence attributed to him by some of his foreign critics,
of inventing part of the evidence he cites. But the interpretation he
placed upon much of it was strained or erroneous. Great conclusions
were drawn from things which had in reality no connection with his
case; laws and events which referred solely to English subjects were
improperly extended to include foreigners; the bearing of many records
was misrepresented, others were passed over in silence, or, as with
the “Burgundy” treaties, referred to in such a way as to distort their
plain meaning.
In the first book the author endeavours to prove that the sea is not
everywhere common, but is capable of appropriation, and has been in
fact in numerous cases appropriated. The objections to that opinion
are classified in three groups: first, that it is contrary to the
law of nature and the law of nations to forbid free commerce and
navigation; second, that the physical nature of the sea, its fluidity
and fluxion, renders it incapable of occupation; third, the opinions
of certain learned men. He argued that the ancient law as to the
community of things had become modified in certain particulars, and
that the received practice and custom of many nations, ancient and
modern, showed that the sea was capable of private dominion, and that
such dominion or appropriation was therefore not contrary either to
the law of nature or the law of nations. In support of his argument
Selden drew freely upon the vast stores of his erudition. He began,
like Welwood, by quoting Scriptures to show that the divine law (_jus
divinum_) allowed private dominion in the sea, and that according to
the opinion of those learned in the Jewish law, a great part of the
sea washing the west coast of the Holy Land had been annexed to the
land of Israel by the appointment of God. Among almost all the nations
of antiquity, he said, it was the custom to admit private dominion in
the sea, and many of them exercised maritime sovereignty.[666] Among
modern nations, sovereignty was exercised by the Venetians in the
Adriatic, by the Genoese in the Ligurian Sea, by the Tuscans and Pisans
in the Tyrrhenian Sea, and by the Pope over a part of the sea called
_Mare Ecclesiæ_. Then the sovereignty claimed by the Spaniards and
Portuguese, and the maritime dominion of the Danes and Norwegians, were
notorious. Even the Poles and the Turks possessed sovereignty in the
Baltic and the Black Sea respectively.
How then could it be denied, with all these examples, ancient and
modern, that the sea could not be appropriated? Selden indeed agreed
with Grotius in repudiating the sovereignty claimed by Spain and
Portugal in the great oceans,--not, however, because it was opposed
to reason and nature, but because it was founded on no legitimate
title, and these nations had not a sufficient naval force to assert and
maintain it.[667]
As to the free use of the sea, Selden admits that to prohibit innocent
navigation would be contrary to the dictates of humanity;[668] but he
held that the permitting of such innocent navigation does not derogate
from the dominion of the sea--it is comparable to the free passage
on a road across another’s land--and it cannot always be claimed as a
right. With respect to the argument that the sea cannot be appropriated
because of its physical properties, he points to the example of
rivers and springs, which even by Roman law may be appropriated, as
well as of lakes. It is not true that the sea has no banks or limits:
it is clearly bounded by the shores; some seas, as the Caspian, are
completely enclosed, and the Mediterranean is so everywhere except
at the Straits of Gibraltar. Elsewhere there are islands, rocks,
promontories, by which boundaries may be determined; and limits may be
set in the open sea by nautical science, as in the fixing of latitude
and longitude; and that was shown by the Bull of Pope Alexander VI.,
and the hundred-mile limit of the Italians. Selden denies that the
sea is inexhaustible from promiscuous use. On the contrary he says a
sea may be made worse for him that owns it by reason of other men’s
fishing, navigation, and commerce, and less profit accrue from it, as
where pearls, corals, and other things of that kind are produced. In
such cases the abundance may be diminished by promiscuous use just as
readily as in the case of metals and suchlike on land; and the same
argument applies to all kinds of fishing.[669]
It was, however, the second book of _Mare Clausum_ which gave it its
chief political importance. It was appropriate and necessary that
the claims of Charles should be justified in the domain of law and
custom; it was still more necessary that they should be supported by
weighty precedents existing in the history of England--that some of
his predecessors had been styled Lords of the Sea, and had exercised
sovereign jurisdiction over foreigners even on their own coasts. After
partially defining the British seas (see p. 19), Selden, as mentioned
in a former chapter, labours to show that maritime sovereignty had
been continuously exercised within them by the ancient Britons, the
Romans, and the Anglo-Saxons in succession, and then by the Norman
and later kings. He strove to prove by a multitude of citations from
records that the kings of England had perpetually enjoyed exclusive
dominion and jurisdiction in the surrounding seas as part of their
territory, and were hence styled Lords of the Sea; that they had always
preserved the right to forbid fishing and even navigation by foreigners
within the British seas, or to exact tribute for that liberty; that
the rights of the crown in the seas, asserted both by kings and
Parliaments, were in conformity with the common law of England, and
had been in several important respects acknowledged by other nations.
A great deal of the evidence adduced is, as has been said, irrelevant.
The long recital of facts connected with the guarding of the sea, the
disposition of fleets, the office and jurisdiction of the admirals,
the raising of special taxes--as the Danegeld--for defensive purposes
or the equipment of ships of war, might have been paralleled in the
records of other maritime states, as France or Flanders.
The maritime sovereignty claimed by Selden for the kings of England
was of the most absolute kind. Speaking particularly of the eastern
and southern parts of the English sea, lying between England and
the shores of France and Germany,--in which Charles was especially
interested,--he declared that the powers exercised by the kings of
England from the time of the Norman Conquest were as follows: (1)
the custody, government, and admiralty, as if it were a territory or
province of the king; (2) leave of passage granted to foreigners at
their request; (3) liberty of fishing in them conceded to foreigners,
and protection afforded to their fishermen; (4) the prescribing of
laws and limits to foreigners in hostility with one another as to the
taking of prizes.[670] It is to be noted that Selden in expounding his
case expressly rejected the principle of the mid-line, the limits laid
down by the Italian writers, and those prescribed by King James in
defining the King’s Chambers; and he disclaimed the arguments used by
the English commissioners at the Bremen Conference in 1602, as to the
freedom of the seas, as being contrary to English rights. He concludes
his famous book in the following words: “It is certainly true,
according to the mass of evidence set forth above, that the very shores
or ports of the neighbouring sovereigns on the other side of the sea
are the bounds of the maritime dominion of Britain, to the southwards
and eastwards; but in the open and vast ocean to the north and west
they are to be placed at the farthest extent of the most spacious seas
which are possessed by the English, Scots, and Irish.”
It may be added that _Mare Clausum_ became in a sense a law-book, an
authoritative work to which eminent lawyers, as Lord Chief-Justice Hale
and Hargrave, appealed as proving the existence and the legality of the
rights of the crown of England to the dominion of the British seas.
Even as late as the year 1830 this doctrine held its place in certain
recognised treatises on the law of England, together with Selden’s
definition of the extent of those seas. (See p. 580.)
As was natural, the appearance of Selden’s book created anxiety
in Holland. Its very title was a challenge to the much-cherished
principles in _Mare Liberum_, and the circumstances connected with its
birth heightened its political importance. It was felt to be almost
equivalent to a declaration of the king himself. The simultaneous
measures for the formation of an English fleet of unexampled strength
made the Dutch fear for even more than their herring fishery. Their
interest in the book was shown by the fact that within a year of
its publication no less than three editions were brought out in
Holland.[671] It was promptly brought before the States of Holland, on
11th December 1635, and remitted to one Professor Petrus Cunæus for
examination and report.[672] His report was read on 31st March 1636,
and the States of Holland, after hearing it, resolved to look upon
_Mare Clausum_ merely as the work of a private person, which did not
require any special procedure on their part.[673] The States-General,
however, took another view of the book, and decided that it should
be formally refuted, since they had learned that King Charles would
attempt to establish his pretended rights over the so-called four seas
by arguments borrowed from _Mare Clausum_. No doubt at this juncture
the thoughts of men in Holland were turned towards Grotius, the one
above all others most worthy of the task of refuting Selden. But
Grotius was then the Swedish ambassador in France, and did not wish to
offend his royal mistress by publicly opposing claims not dissimilar
to those she herself made in the Baltic.[674] If we can trust Sir
Kenelm Digby, Grotius was even pleased to see his works refuted. In a
letter from Paris about Selden’s book, which was “much esteemed” there,
Digby said Selden was not to expect a reply from Grotius, “who wrote,
he says, as a Hollander, and is exceeding glad to see the contrary
proved.”[675]
The official refutation of _Mare Clausum_ was, by a resolution of the
States-General on 28th April 1636, entrusted to a lawyer of Delft,
called Dirck Graswinckel, who does not appear to have been very well
fitted for so onerous a duty. His treatise in reply to Selden was not
submitted to the States-General until 13th April in the following
year, and by that time much had happened to alter the political
complexion of affairs. The States-General had then reason to believe
that the campaign which Charles had been carrying on against the Dutch
herring-busses would be suspended (p. 315), and probably never resumed;
and after remitting Graswinckel’s work to a committee, it was finally
set aside and was never published, while the author was soothed by the
substantial pension of 500 gulden a-year for his pains.[676]
But another Dutchman in this year assumed the task which Graswinckel
had fruitlessly essayed. This was Pontanus, Professor of Philosophy and
History in the College of Harderwyck in Guelderland, who also occupied
the office of Historiographer to the King of Denmark. He had thus,
like Grotius, to be cautious in his refutation of Selden’s general
arguments upon the appropriation and dominion of seas, because the
claims of Denmark to such property and dominion were notorious. But he
was free to contest the particular rights of England, which he did with
zest. He subjected Selden’s chapters, almost _seriatim_, to a rigorous
criticism, beginning with the Romans and the Anglo-Saxons. He made the
most of the declarations of Elizabeth as to the freedom of the seas for
navigation and fishing, and of her State Paper of 1602 (see p. 110);
and he dealt specially with the sovereignty over the northern seas--the
_Mare Caledonium_ and those flowing between the Scandinavian countries
and Iceland and Greenland--which he asserted were not, and never had
been, under the dominion of England, but always appertained to the
Scandinavian nations. Pontanus entered very fully into the negotiations
which had taken place between England and Scotland on the one hand, and
Norway and Denmark on the other, concerning those seas and the rights
of navigating and fishing at Iceland and Greenland--subjects on which,
from his official position, he had special knowledge.[677] In the same
year another author, and he a Frenchman, entered the field in defence
of the appropriation and dominion of seas,[678] while a somewhat
virulent controversy broke out between Poland and Denmark as to the
sovereignty of the Baltic Sea, which was claimed by each, as it had
been shortly before by Sweden, and formed, indeed, one of the causes of
the war by Gustavus Adolphus against Germany.[679]
The juridical controversies respecting the appropriation and dominion
of the seas continued throughout the whole of the seventeenth century
and well on into the next, and so far as this country was concerned,
they were particularly vehement during the first and the third Dutch
wars.